Physiotherapists may encounter adult clients who have lost capacity to make their own health-care decisions in many practice settings. Many adults who have lost capacity will have an alternate decision maker in place.
Types of Alternate Decision Making in Alberta
Supported decision-making – An adult who is capable of making decisions can choose a trusted person to assist them with accessing information and communicating their decisions.
Specific decision-making – When an adult has lost the ability to provide consent, and no other decision maker is in place, a specific decision maker can be chosen by a health-care provider from among the adult’s relatives to make healthcare and residential facility placement decisions.
Co-decision-making – Used when an adult needs help to make personal decisions on their own but is able to make decisions with support. In these arrangements, the adult decides if they want a co-decision-maker, who that will be, and when to stop having a co-decision-maker.
Adult guardianship – A court-ordered appointment of a person to make personal decisions (healthcare, housing, employment and social activities) on behalf of an adult who does not have capacity. Guardians make personal decisions. Trustees make financial decisions.
This article will focus on Adult Guardianship and will cover a physiotherapist’s duties when working with an adult who lacks capacity and has a guardian to make decisions regarding their care. It is important to note that an adult who has lost capacity has not necessarily lost the ability to participate in conversations regarding their own health and wellbeing and may still be an active participant in their care. However, it does mean that someone else is making their health-care decisions for them.
Requirements When Adult Guardianship is in Place
Glenda has been a client of yours for the past several years in a long-term care facility, but her condition has deteriorated and she has recently been deemed to lack capacity. Due to this change in status her daughter has been named as her official guardian and shows up at the facility to discuss her mother’s treatment plan.
Step 1: Confirm that the daughter does have the legal authority to make health-care decisions for her mother.
Glenda’s daughter can produce a court order that states she has guardianship over her mother and wants to receive an update on the changes in her mother’s condition and what the treatment plan is since her mother’s condition has changed.
Step 2: Gain informed consent from the daughter as they are the decision maker.
You walk through the changes in her mother’s condition and what that means to the care she has been receiving. You discuss the adjustments that you think should occur and review the new treatment plan with the daughter. You discuss the risks and benefits of care and provide them with time to ask questions. You obtain the daughter’s consent for the updated treatment plan.
Step 3: Document
You document that you confirmed guardianship, the details of the discussion around consent, and that consent was received from the daughter to enact the treatment plan. It is important to recognize that although the guardian consents to the care being provided, the client must still assent or agree to care in each session. You cannot force a client to go through their rehab programming if they are not cooperative, even with consent of the guardian.
It is also important to note that any further changes in the future regarding the client’s treatment plan would require consent to be obtained from the daughter.
Communication Challenges with Guardians
Glenda’s guardian lets you know that she usually visits her mother in the evenings and on the weekends. You will have very little direct interaction with them because of their other responsibilities and the times that they are present. You know you need ongoing consent for treatment but it seems unreasonable to call Glenda’s guardian every time you try to see her.
When a guardian or substitute decision maker is in place, it can be logistically difficult to obtain ongoing consent for care at every treatment session. Instead, you opt to obtain consent from the guardian for a “plan of care” expected to continue over a series of treatment visits.
You articulate a detailed plan of care, obtain consent from the guardian, and arrange to provide updates to the guardian at agreed intervals or if the plan of care changes.
In this case, provided there is no significant change in the nature, expected benefits, or risks of treatment, you can presume that consent to the treatment plan continues.
A new informed consent must be obtained whenever there is a significant change in the client’s capacity, condition, treatment plan, expected outcomes, or risks.
Several weeks have passed and Glenda’s condition changes again and the treatment plan requires some tweaking. You reach out to Glenda’s daughter to update her but do not hear anything back. You attempt to call and email her with the contact information on hand but are still not getting any responses over the week.
As much as you would like to just adjust the treatment plan and continue, you realize that consent is still required from the guardian. Although frustrating, it is not an emergent situation, so you decide to wait to see if they get back to you.
For physiotherapists who are used to gaining consent immediately from the client in front of them it can be a bit frustrating waiting to hear back from a guardian. However, you cannot proceed with any changes to care without the express consent of the guardian. In extreme circumstances if the guardian is unable to fulfill their role a court can review guardianship and make changes.
Guardianship and Family Members
While you are waiting to hear from Glenda’s daughter, you get a surprise visit from Glenda’s son who is in town for a few days. They let you know the daughter is on a short vacation and will be back early next week. After the visit with their mother, they express their concerns over their mother’s condition and the care that’s being provided. They make several suggestions about what should be happening with their mother and want you to make those changes immediately.
A legal guardian in this matter is the one who has sole control over health-care decisions for the adult they are guardian of. Any discussions regarding client care, changes in the client’s condition, proposed treatment plans, etc. should be held directly with the guardian. The guardian can choose to bring family members into those discussions but in the end, it is the guardian who has final say over the care the client receives.
You let the son know that the daughter is the one who has produced documentation that they are the legal guardian of the client. As much as the son would like to be involved in care decisions today, they must discuss their concerns with their sister. If the sister consents to having a team meeting or agrees to changes in their mother’s care, then you would be able to enact those changes.
It is important to remember that the son does not have a legal right to enquire about the details of their mother’s condition or care. You would have to receive consent from the guardian to provide that information to the son.
Conclusion
As a physiotherapist you will encounter clients who have an alternate decision maker in place. It is important to understand what their role is and what legal authority they have in regard to your client. Recognizing the role they play and working with them is key to providing safe, quality care for the client. Ensure you document the details of all the consent discussions and make clear who was part of those discussions.
If you have any questions regarding alternative decision makers or are in a situation where you are not sure what to do, please contact professional practice.
Action Items
- Confirm the alternative decision maker has authority to make decisions
- Ensure you document the consent discussions with the alternative decision maker
- Understand the role the alternative decision maker has in the decision-making process
